Citation: Robinson v R [2017] NSWCCA 315
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2017
Judges: Bathurst CJ, R A Hulme J, Wilson J
Background
The appellant (identified by pseudonym) was sentenced in the District Court at Lismore in October 2015 following guilty pleas to two serious home invasion offences committed in early 2014, when he was approximately 18 years old. Both offences involved groups of offenders targeting suspected drug dealers at residential premises, with a co-offender armed with a sawn-off .22 calibre rifle and other offenders, including the appellant, armed with bladed weapons, batons or steel bars. In the second offence, the firearm was discharged in the direction of a fleeing victim.
The District Court sentenced the appellant to a fixed term of 2 years for the first offence (specially aggravated enter dwelling with intent to commit robbery in company) and 4 years 6 months with a non-parole period of 2 years 6 months for the second offence (specially aggravated break, enter and commit robbery in company). The sentences were to be served partly concurrently, producing a total effective sentence of 5 years 3 months with a non-parole period of 3 years 3 months.
The sentencing judge applied a combined discount of 45 per cent to each sentence, comprising 25 per cent for early guilty pleas and 20 per cent for assistance to authorities. The appellant sought leave to appeal, contending the assistance discount was insufficient and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by failing to allow a sufficient discount for past and future assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentences imposed were unreasonable or plainly unjust (manifest excess)
Decision
Assistance discount: The Court of Criminal Appeal found no error in the sentencing judge's approach to the assistance discount. Section 23(3) of the Crimes (Sentencing Procedure) Act 1999 caps the combined discount for assistance and guilty plea at 50 per cent. The sentencing judge awarded 20 per cent for assistance as part of a total 45 per cent combined discount, leaving only a narrow margin below the statutory ceiling. The Court noted that the assessment of an appropriate discount for assistance is a matter of discretion, and no error was established in the exercise of that discretion.
Manifest excess: The Court acknowledged some difficulty in identifying a meaningful sentencing range from comparable cases, given variations in offence elements and the relatively low number of relevant precedents for s 112(3) offences. It examined a number of prior decisions and noted that starting points in comparable cases tended to fall in a range of roughly 6 to 8 years or more, depending on the particular circumstances. The Court characterised the starting point adopted by the sentencing judge as "a stern one" but concluded it fell within the legitimate exercise of her sentencing discretion.
In reaching that conclusion, the Court emphasised several aggravating features of the second offence in particular: it was planned and committed by multiple offenders wearing disguises; the victims, including an older couple, were confronted at gunpoint and ordered to the floor; the rifle was pointed directly at the female victim's face with a threat to shoot her; and the firearm was ultimately discharged as the offenders fled. The Court also noted the second offence could not be treated as isolated, given the earlier home invasion committed two months prior. Both grounds of appeal were rejected.
Orders Made
- Leave to appeal against sentence granted
- Leave to appeal dismissed
Key Takeaways
- Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, the combined discount for assistance and guilty plea cannot exceed 50 per cent; where a sentencing judge awards a total combined discount of 45 per cent, there is limited scope to argue the assistance component was insufficient without identifying a specific error in the exercise of discretion.
- The Court of Criminal Appeal confirmed that the assessment of an assistance discount under s 23 is discretionary, and an appellate court will not intervene simply because a different discount might have been available.
- In dismissing the manifest excess ground, the Court acknowledged that comparable sentencing cases for specially aggravated home invasion offences do not always yield a clear or narrow range, and that sentencing judges retain a broad discretion within that context.
- A starting point that is characterised as "stern" will not be set aside on appeal if it remains within the bounds of a legitimate sentencing discretion, particularly where multiple serious aggravating features are present.
- Home invasion offences involving planned attacks on occupied dwellings, multiple armed offenders, direct threats to victims at gunpoint, and discharge of a firearm are treated as being of considerable seriousness, warranting significant weight being given to general deterrence, punishment and community protection.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 105A, 111(3), 112(3)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2)
Cases:
- Aslett v R [2012] NSWCCA 235
- Burrows v R [2017] NSWCCA 45
- De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32; 249 A Crim R 252
- Haouchar v R [2014] NSWCCA 227
- Harper v R [2017] NSWCCA 159
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hutchinson v R [2014] NSWCCA 317
- LB v R [2013] NSWCCA 70
- Micklesson v R [2009] NSWCCA 61
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 120
- Palijan v R [2010] NSWCCA 142
- Panetta v R [2016] NSWCCA 85
- R v Baghdadi [2008] NSWCCA 239
- R v Campbell [2014] NSWCCA 102
- R v Chaaban [2006] NSWCCA 107
- R v Cheh [2009] NSWCCA 134
- R v Dole; R v Nguyen [2010] NSWCCA 101
- R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
- R v Elmir; R v Salami [2003] NSWCCA 192
- R v Gallagher (1991) 23 NSWLR 220